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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of
)
Claro Communications, LTD. File Number EB-07-HU-048
)
Licensee of Station KBRN NAL/Acct. No. 200832540001
)
Boerne, Texas FRN 0015929763
)
Facility ID # 51961
)
)
FORFEITURE ORDER
Adopted: January 15, 2008 Released: January 17, 2008
By the Regional Director, South Central Region, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of eight thousand eight hundred dollars ($8,800) to Claro
Communications, LTD., ("Claro"), licensee of station KBRN, in Boerne,
Texas, for willful and repeated violation of Section 73.1125(a) of the
Commission's Rules ("Rules") and the repeated violation of Section
73.1745(a) of the Rules. The noted violations involve Claro's failure
to maintain a main studio and operation of its station at a power
level exceeding that specified in its license.
II. BACKGROUND
2. On August 6, 2007, in response to a complaint, an agent from the
Commission's Houston Office of the Enforcement Bureau ("Houston
Office") investigated the operation of station KBRN in Boerne, Texas.
The agent conducted field strength measurements on station KBRN's
radio signal at various times throughout the day and evening. These
measurements indicated that the power output of station KBRN's
transmitter did not change during the day, near sunset, or well into
the night. Additionally, the agent was unable to locate a main studio
for station KBRN in or near the town of Boerne, Texas.
3. On August 7, 2007, the agent from the Houston Office took field
strength measurements at various times during the day and night. These
measurements showed that the power level of station KBRN did not
change after sunset local time, and was at the same level as observed
the previous day.
4. On August 8, 2007, the agent from the Houston Office again took field
strength measurements at various times during the day and night. These
measurements showed that the power level of station KBRN did not
change after sunset local time, and was at the same level as observed
the previous two days. The agent, still attempting to locate a main
studio for station KBRN, spoke by telephone to the owner of the
station and a contract engineer employed to maintain the station's
transmitting equipment. Both confirmed the station did not have a
permanent main studio for station KBRN, but instead was operating
temporarily out of a hair salon business in Boerne, Texas.
Additionally, the owner stated the temporary studio did not have any
employees of station KBRN reporting daily to that location and that
the station had been operating under these conditions for about 60
days.
5. On August 9, 2007, the agent from the Houston Office met with the
manager of station KBRN at the hair salon business to inspect the
station's main studio. The station manager stated that no employees of
the station worked at this location, but the employees of the hair
salon knew to call him if anyone came in to discuss matters relating
to the radio station. The station manager then showed the agent
broadcast equipment typically used at a radio station studio installed
in a back room closet of the hair salon. The equipment was not
functioning and was not even connected to an electrical outlet. The
manager explained that the equipment was never actually used to
provide programming to the transmitter because the studio to
transmitter radio link could not be made to function from this
location. The manager further stated that a computer installed in the
transmitter building at the transmitter site was providing programming
for the station. After sunset still on August 9, 2007, the agent from
the Houston Office met with a contract engineer employed by station
KBRN at the station's transmitter site. The engineer confirmed the
station was being operated unattended with a computer in the
transmitter building providing programming. The engineer additionally
determined that the station was still operating in its daytime mode
and power although he did not immediately know why. The engineer set
the station to its proper nighttime power and stated he would make
arrangements to have the transmitter manually switched from daytime
operating mode to nighttime operating mode until the automated control
system could be repaired. After leaving the transmitter site, the
agent from the Houston Office conducted field strength measurements
that confirmed a dramatic reduction in the power level of station
KBRN's signal.
6. On November 21, 2007, the Houston Office issued a Notice of Apparent
Liability for Forfeiture to Claro in the amount of eleven thousand
dollars ($11,000) for the apparent willful and repeated violation of
Section 17.1125(a) of the Rules and the apparent repeated violation of
Section 73.1745(a) of the Rules. Claro submitted a response to the NAL
requesting a reduction or cancellation of the proposed forfeiture.
III. DISCUSSION
7. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the Communications Act of 1934, as amended
("Act'), Section 1.80 of the Rules, and The Commission's Forfeiture
Policy Statement and Amendment of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines, 12 FCC Rcd 17087 (1997), recon.
denied, 15 FCC Rcd 303 (1999) ("Forfeiture Policy Statement"). In
examining Claro's response, Section 503(b) of the Act requires that
the Commission take into account the nature, circumstances, extent and
gravity of the violation and, with respect to the violator, the degree
of culpability, any history of prior offenses, ability to pay, and
other such matters as justice may require.
8. Section 73.1125(a) of the Rules requires broadcast stations to
maintain a main studio. "A station must equip the main studio with
production and transmission facilities that meet applicable standards,
maintain continuous program transmission capability, and maintain a
meaningful management and staff presence." The Commission has defined
a minimally acceptable "meaningful presence" as full-time managerial
and full-time staff personnel. On August 9, 2007, during normal
business hours, no management or staff employees of station KBRN were
present at its main studio in the hair salon in Boerne, Texas.
Additionally, the equipment installed to provide the station with
production and transmission capability at this location was not
functioning. The station owner admitted that the main studio had been
unattended by any station employees for about 60 days. The station
manager also admitted that the main studio was not staffed and that
its production and transmission equipment had never functioned. Thus,
based on the evidence before us, we find that Claro willfully and
repeatedly violated Section 73.1125(a) of the Rules by failing to
maintain a main studio.
9. In its response to the NAL, Claro provides additional information,
which is asserts justifies a reduction or cancellation of the proposed
forfeiture. Claro states that in July 2007, while the station was in
the midst of moving its main studio, its sole principal was diagnosed
with cancer and underwent treatment, thus preventing him from
identifying a permanent main studio location and managing the move.
Accordingly, between July and September 2007, Claro admits that it was
not in compliance with the main studio requirements; the main studio
was temporarily located at the transmitter site, a hair salon, and
then a church. Claro reiterates that this situation was temporary and
that a new main studio has since been established. Claro asserts that
a base forfeiture sanction is reasonable but that imposition of a
$7,000 forfeiture is grossly excessive, because it equates the
situation with one in which there was no main studio or no meaningful
management presence at all.
10. Claro, however, has not provided grounds upon which to cancel the
forfeiture. It is undisputed that Claro's main studio was neither
staffed by staff members or management nor fully operational for at
least one month prior to the agent's inspection. Therefore, its
violation was willful and repeated. Although this situation was meant
to be temporary and was exasperated by the sole principal/owner's
illness, it does not excuse the violation. Claro could have avoided
the violation by applying for a waiver of the rules before it
relocated its main studio to the temporary locations, or setting up a
new compliant main studio prior to moving from its previously
compliant main studio. The NAL proposed a $7,000 forfeiture, which is
the base forfeiture amount for a main studio violation. As mentioned
above, because the purported main studio(s) did not have functioning
production and transmission capabilities and was not staffed by either
managerial or staff personnel, Claro did not have a main studio, as
required by the Rules. Thus, a $7,000 base forfeiture is appropriate.
11. Section 73.1745(a) of the Rules states that no broadcast station shall
operate at times, or with modes or power, other than those specified
and made a part of the license, unless otherwise provided in this
part. Station KBRN is authorized to operate with 1900 watts during
the day and 15 watts at night. On August 6, 7, and 8, 2007, field
strength measurements showed station KBRN did not reduce power from
its daytime authorized power to its nighttime authorized power after
sunset local time. On August 9, 2007, the station engineer confirmed
that the station was not reducing its power at night and did not know
why the station's automated control system was malfunctioning. Thus,
based on the evidence before us, we find that Claro repeatedly
violated Section 73.1745(a) of the Rules by operating the station at
a power level exceeding that specified in its license.
12. In response to the NAL, Claro claims the forfeiture should be reduced
or cancelled, citing Sarkes Tarzian. In that case, the Commission
found that the "omissions complained of have been freely conceded and
corrected where within the power of applicants to do so, and such
isolated and inadvertent rule violations raise no question regarding
the fitness of applicants for renewal." The Commission admonished the
licensee to observe the public file rule scrupulously in the future.
That case, however, involved a license renewal proceeding. Commission
agents did not find willful and/or repeated violations in an
enforcement proceeding. Rather, individuals submitted petitions to
deny a renewal application alleging that two forms were missing from
the public inspection files. Moreover, here, the agent found that the
station operated overpower on at least three separate occasions, so
the violations were not isolated. Accordingly, we find no grounds to
cancel this violation.
13. Finally, Claro requests a reduction based on its good faith efforts to
comply with Section 73.1125(a) of the Rules and its history of
compliance with the Rules. In support of its request, Claro states it
freely admitted to the events complained of during the inspection and
took immediate steps to remedy both violations. However, corrective
action taken to come into compliance with the Rules and cooperation
with agents is expected, and does not nullify or mitigate any prior
forfeitures or violations. Because Claro has not been party to a prior
enforcement action, we reduce the forfeiture to $8,800, based on its
history of compliance with the Rules.
14. We have examined Claro's response to the NAL pursuant to the statutory
factors above, and in conjunction with the Forfeiture Policy
Statement. As a result of our review, we conclude that Claro willfully
and repeatedly violated Section 73.1125(a) of the Rules and repeatedly
violations Section 73.1745(a) of the Rules. However, we reduce the
forfeiture for these violations to $8,800, based on Claro's history of
compliance with the Rules.
IV. ORDERING CLAUSES
15. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311 and
1.80(f)(4) of the Commission's Rules, Claro Communications, LTD. IS
LIABLE FOR A MONETARY FORFEITURE in the amount of eight thousand eight
hundred dollars ($8,800) for violation of Sections 73.1125 and 73.1745
of the Rules.
16. Payment of the forfeiture shall be made in the manner provided for in
Section 1.80 of the Rules within 30 days of the release of this Order.
If the forfeiture is not paid within the period specified, the case
may be referred to the Department of Justice for collection pursuant
to Section 504(a) of the Act. Payment of the forfeiture must be made
by check or similar instrument, payable to the order of the Federal
Communications Commission. The payment must include the NAL/Acct. No.
and FRN No. referenced above. Payment by check or money order may be
mailed to Federal Communications Commission, P.O.
Box 358340, Pittsburgh, PA 15251-8340. Payment by overnight mail may
be sent to Mellon Bank /LB 358340, 500 Ross Street, Room 1540670,
Pittsburgh, PA 15251. Payment by wire transfer may be made to ABA
Number 043000261, receiving bank Mellon Bank, and account
number 911-6106. Requests for full payment under an installment plan
should be sent to: Associate Managing Director, Financial Operations,
445 12th Street, S.W., Room 1A625, Washington, D.C. 20554.
17. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class and Certified Mail Return Receipt Requested to Claro
Communications, LTD. at its address of record and to its counsel,
Christopher D. Imlay, Booth, Freret, Imlay & Tepper PC, 14356 Cape May
Road, Silver Spring, MD 20904.
FEDERAL COMMUNICATIONS COMMISSION
Dennis P. Carlton
Regional Director, South Central Region
Enforcement Bureau
47 C.F.R. S:S: 73.1125(a), 73.1745(a).
The current license for station KBRN is for daytime operation only;
however, station KBRN has been granted a Construction Permit by the
Commission authorizing it to operate at a daytime power of 1900 watts and
a nighttime power of 15 watts.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200832540001
(Enf. Bur., Houston Office, November 21, 2007) ("NAL").
47 U.S.C. S: 503(b).
47 C.F.R. S: 1.80.
47 U.S.C. S: 503(b)(2)(D).
47 C.F.R. S: 73.1125(a).
Main Studio and Program Origination Rules, Memorandum Opinion and Order,
3 FCC Rcd 5024, 5026 (1988).
Jones Eastern of the Outer Banks, Inc., Memorandum Opinion and Order, 6
FCC Rcd 3615, 3616 (1991), clarified 7 FCC Rcd 6800 (1992).
Section 312(f)(1) of the Act, 47 U.S.C. S: 312(f)(1), which applies to
violations for which forfeitures are assessed under Section 503(b) of the
Act, provides that "[t]he term `willful,' ... means the conscious and
deliberate commission or omission of such act, irrespective of any intent
to violate any provision of this Act or any rule or regulation of the
Commission authorized by this Act ...." See Southern California
Broadcasting Co., 6 FCC Rcd 4387 (1991).
As provided by 47 U.S.C. S: 312(f)(2), a continuous violation is
"repeated" if it continues for more than one day. The Conference Report
for Section 312(f)(2) indicates that Congress intended to apply this
definition to Section 503 of the Act as well as Section 312. See H.R. Rep.
97th Cong. 2d Sess. 51 (1982). See Southern California Broadcasting
Company, 6 FCC Rcd 4387, 4388 (1991) and Western Wireless Corporation, 18
FCC Rcd 10319 at fn. 56 (2003).
We note that the transmitter site was unattended and not accessible to the
public, so it could not serve as a compliant main studio.
We note that on August 8, 2007, the station owner/sole principal stated
that the main studio had been unattended for approximately 60 days. This
would mean that the station's main studio was not in compliance with the
rules in the beginning of June 2007. Claro did not address this prior
statement in its response to the NAL.
Claro's sole principal decided to relocate the main studio prior to his
illness. He could have chosen either of these options, during this
decision-making process. Moreover, Claro employed a station manager, who
could have obtained a waiver of the rules during the sole principal's
illness.
See, RAMA Communications, Inc., Forfeiture Order, 22 FCC Rcd 13796 (2007)
(assessing a $7,000 forfeiture for failure to maintain main studio
staffing). See also Puget Sound Educational TV, Inc., Forfeiture Order, 22
FCC Rcd 17326 (2007), Maria L. Salazar, Memorandum Opinion and Order, 20
FCC Rcd 20598 (2005).
47 C.F.R. S: 73.1745(a).
65 FCC2d 127 (1977).
Id. at 130.
See Seawest Yacht Brokers, Forfeiture Order, 9 FCC Rcd 6099 (1994).
47 U.S.C. S: 503(b); 47 C.F.R. S:S: 0.111, 0.311, 1.80(f)(4), 73.1125,
73.1745.
47 U.S.C. S: 504(a).
See 47 C.F.R. S: 1.1914.
Federal Communications Commission DA 08-103
2
Federal Communications Commission DA 08-103